Young v. Cason

48 Mo. 259 | Mo. | 1871

Bliss, Judge,

delivered the opinion of the court.

This cause has been once before this court, and is reported in . 43 Mo. 179. On being remanded, an amended petition was filed, in which several new parties joined as plaintiffs; and Coleman, being a nominal defendant, was not named. We before found that the mistake in the first deed was sufficiently established, but it did not appear that the plaintiff had paid the debt, to secure which the deed was given, and therefore he had no equity as against other creditors. It now appears that the debt, amounting to about $1,600, has been paid by the plaintiff and his co-sureties ; that the original trust deed was executed to Parsons for the benefit of all the sureties, and that the property was bid in by Young for his and their benefit. The mistake is more clearly established than before, and the new plaintiffs who have joined with Young are his co-sureties, who have paid the debt, and for whose use he has bid in the property.

The defendant interposes the statute of limitations against all the new plaintiffs ; but it will be seen that they have always been in court as represented by tbeir trustee, Young. Had the former judgment, which was in favor of Young alone, not been reversed, the other plaintiffs, according to the present showing, could have compelled him to hold the land as trustee; the trust being a continuing one, the statute would not run against them, and they should certainly be placed in no worse position because they now come in to have their equities adjusted as between themselves, as well as to enforce their equity against defendant, which before had been prosecuted alone by their trustee.

The decree affirms the sale to Young, but gives the property to all the present plaintiffs, for whose use he bid it in, and sets aside the lien and sale to defendant. The latter claims that there should be a re-sale. That point is not without difficulty. If the original mistake had not been corrected by the grantor through a new deed, and the sale had not been made under the latter deed as well as the former, I should think it clear that the sale ought not to be affirmed. It would not do for a. mortgagee or trustee to proceed to sell property not' named or embraced in the mortgage, and afterward for the purchaser to obtain a confirmation of the sale by showing that it was intended to be embraced. It is not such an equity as should he subject to sale under a power to sell something else, but the right to sell the specific property should be first established. In the present case, however, there was a new.trust deed correcting the old one. The later one conveyed the legal title to the true property. There would have been no necessity of coming into court had not a judgment lien intervened, and equity may not only enforce liens but remove them when they come in conflict w.ith a superior equity. If there had been a sacrifice of the property in consequence of this cloud — if . it were shown to have been worth greatly more than the amount for which the sureties became liable — there might be some show of reason in the request, but nothing of the kind appears.

Judgment affirmed.

The other judges concur.